Fruit of the Poison Tree

In a Dallas court, Costa Rican banana workers claim a banned pesticide left them sterile

Nevertheless, the lab results prompted safety guidelines that mandated the use of protective clothing. When Dole first began to use the chemical in Central America in the 1960s, boots, gloves and cloth masks were distributed to the farms in accordance with the manufacturers' recommendations. But incredibly, after a few months the safety equipment was recalled.

In 1977, workers at a California DBCP manufacturing plant noticed that "there weren't any children being bore," as one foreman put it. Testing revealed that 35 of the 114 plant workers had been sterilized. Use of the chemical was immediately suspended in the United States, but in Costa Rica and dozens of other countries, workers continued pouring, mixing and spraying--and absorbing.

The ban was made permanent in the United States in 1979, and Costa Rica quickly followed suit. Most accounts say that Dole and other growers simply gathered up their supplies and sent them to farms in other countries. One witness reported DBCP use in the Philippines as late as 1991.

Banana republic: The Dole sunburst logo is ubiquitous in 
Costa Rica, from an ad at Juan Santamaria International 
Airport vowing to "produce in harmony with the 
environment" to the trailers waiting at a processing plant 
for their cargo of bananas. The pesticide DBCP was 
pumped into the soil with handheld injectors, at bottom.
Charles E. Ames
Banana republic: The Dole sunburst logo is ubiquitous in Costa Rica, from an ad at Juan Santamaria International Airport vowing to "produce in harmony with the environment" to the trailers waiting at a processing plant for their cargo of bananas. The pesticide DBCP was pumped into the soil with handheld injectors, at bottom.
Fred Misko, top, lead lawyer for the banana workers, 
and Terry Murphy, below, chief counsel for Dole, both 
claim to be confident of victory in the trial that starts 
next week in Dallas' 116th District Court.
Mark Graham
Fred Misko, top, lead lawyer for the banana workers, and Terry Murphy, below, chief counsel for Dole, both claim to be confident of victory in the trial that starts next week in Dallas' 116th District Court.

"Accidents happen in any industry," plaintiff Picado says. "The worst part is that this was not an accident."

There is evidence that Picado is not exaggerating. After use of the substance was suspended in the United States in 1977, Dow notified Dole that it intended to stop providing DBCP because of the potential liability. Even though the dangers of the chemical were undeniable by that point, the grower threatened Dow with a lawsuit for breach of contract unless deliveries continued to Central America.

Only after Dole signed an agreement to cover Dow's losses in the event of a lawsuit would the chemical giant resume distributing the toxin. A copy of that agreement will be one of Misko's key exhibits in the trial.


That Borja is going to trial in the United States is a rarity in itself. Much of the tortuous litigation has been over which court, in which country, will host the proceedings.

"The defense will make a lot out of 'what is this doing in a Texas court?'" predicts Charles Siegel, a lawyer for the plaintiffs, "but the simple fact is that Shell, one of the defendants in this case, is based in Texas. It's just that simple--there's nothing improper or deceitful about that."

Murphy disagrees. "I think the plaintiffs' lawyers just thought that Texas was a good state for plaintiffs," he says.

The truth is probably somewhere in between and has a lot to do with a once-obscure doctrine in Scottish jurisprudence called forum non conveniens, literally "inconvenient forum." The doctrine was initially conceived to relocate lawsuits deliberately filed in distant or out-of-the-way venues. Over the years it instead became a means for multinational corporations to avoid facing lawsuits in American courts. For example, after the 1984 Bhopal, India, disaster that killed an estimated 8,000 people, Union Carbide invoked forum non conveniens when survivors sued in U.S. court.

"Basically, U.S. multinationals want to have it both ways," says Erika Rosenthal, an environmental lawyer and consultant to San Francisco-based activist group Pesticide Action Network. "They want to be able to export their products even if they can't use them here, but they want to be shielded from any liability."

The same year as the Bhopal disaster, Dallas law firm Baron & Budd, best known for its asbestos litigation, filed suit in Houston on behalf of about 1,000 Costa Rican banana workers claiming DBCP injuries. At the time, Texas did not recognize forum non conveniens. After a bitter legal fight, Dow, Dole and the other defendants settled in 1992 for $20 million, and corporate interests, alarmed by the outcome, quickly put pressure on Texas lawmakers to adopt the doctrine.

After that case, banana workers around the world began to come forward, and a former Baron & Budd lawyer, Charles Siegel, teamed up with Misko to file Borja v. Dow in 1993--just a few months before forum non conveniens was formally incorporated into Texas law.

Misko's haste to beat the deadline, however, proved to be in vain. In a brilliant legal move, the defendants brought forum non conveniens back into the picture in 1995 by adding to the case an Israeli government-owned chemical company that also manufactured DBCP. Once a foreign government was involved, the suits automatically fell under federal jurisdiction, where the doctrine is recognized.

"We were all ready to go to trial," Misko says. "We had witnesses lined up, evidence ready, but suddenly everything was frozen." The federal judge sent the workers home, and the cases scattered across the globe, many to countries with scant judicial resources.

Misko was forced to seek a settlement, and in 1997 he got one: $41.5 million from the chemical companies. In 1998, Del Monte and Chiquita also settled--but Dole refused. "I think it's a bad idea," Murphy says of the settlement. "If you sue and you automatically get money, then that just encourages everybody to sue."

In Costa Rica, Borja eventually worked its way to that country's Supreme Court, which ruled that it did not have jurisdiction over the case since it had already been filed in the defendants' home country. The case was returned to America for good, and the bellwether plaintiffs from Rio Frio will be the first of Misko's roughly 6,000 remaining clients to present their case before a jury.

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